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District Court of Appeal, Second District, Division 2, California.

WEST COVINA ENTERPRISES, Inc., a corporation, Plaintiff and Respondent, v. John H. CHALMERS, Defendant and Appellant.*

Civ. 22108.

Decided: March 21, 1957

Louis M. Welsh, Los Angeles, David H. Thompson, San Diego, for appellant. Morrow & Morrow, Los Angeles, for respondent.

Plaintiff, having decided to erect an addition to a hospital, employed defendant Chalmers to render the architectural services under a written contract dated January 2, 1954. The agreement called for completion of preliminary plans on or before May 1, 1954, final drawings and specifications by September 1, 1954, start of construction on or before October 1, 1954, and completion by December of that year. Defendant did some preliminary work and then refused to perform further upon the ground that, as he was not a licensed architect, the contract was illegal. Plaintiff sued for damages and defendant cross-complained for compensation alleged to be due and for damages. The court held the contract to be valid and to have been breached by defendant without cause. It awarded plaintiff damages in the sum of $13,075 and denied relief on the cross-complaint. Defendant moved to vacate the judgment and enter a different one pursuant to § 663, Code of Civil Procedure, and the motion was denied. Defendant appeals from that order and from the judgment.

Alleged illegality of the agreement is the burden of appellant's argument. Section 5536, Business & Professions Code, makes it a misdemeanor to practice architecture in this State without a license so to do, but § 5537 qualifies this, saying: ‘This chapter does not prevent any person from making any plans or drawings for his own buildings or from furnishing to other persons plans, drawings, specifications, instruments of service, or other data for buildings, if, prior to accepting employment or commencing work on such plans, drawings, specifications, instruments of service, or other data, the person, so furnishing such plans, drawings, specifications, instruments of service, or data, fully informs such other person or persons, in writing, that he, the person proposing to furnish such plans, drawings, specifications, instruments of service, or data, is not an architect.’ The contract at bar requires defendant to inspect and superintend the construction of the building, as well as to prepare the instruments specifically mentioned in § 5537. It has been held, however, that the effect of that section is to permit an uncertificated architect to practice all phases of his profession if he informs the employer in writing that he is not an architect1 and does so before accepting the employment.

This is the ruling of McDowell v. City of Long Beach, 12 Cal.App.2d 634, 637–638, 55 P.2d 934, 935. The case arose under an earlier statute which was substantially the same as § 5537, although its terminology was more abbreviated, the reference being to ‘furnishing plans or other data for buildings for other persons.’ Stats.1901, p. 641, Gen.Laws 1931, Act 486, as amended by Stats.1903, p. 522, § 5. At page 638, of 12 Cal.App.2d, at page 936 of 55 P.2d the court said: ‘When the statute refers to the ‘practice of architecture’ and to ‘furnishing plans or other data for buildings,’ the former expression is not used in any broader sense than the latter; in other words, the preparation of plans and data is used as synonymous with ‘practice of architecture.’ In allowing an unlicensed person under certain conditions to prepare plans and data, the statute does not expressly grant him the right to supervise construction, but neither does it withhold that right, nor could it be arbitrarily withheld from him while all others were allowed to exercise it.

‘Under the facts established, plaintiff's services in preparing plans and data were expressly authorized by the law; his services, consisting of supervision of construction, were not prohibited.’ This case was followed in People v. Wright, 131 Cal.App.2d Supp. 853, 859, 281 P.2d 384, 388, wherein the court said: ‘It therefore must follow that Section 5537 in the respect mentioned authorizes the person who does not possess the certificate ‘to practice architecture.” The McDowell case, supra, also holds that the permission thus extended to unlicensed architects applies to a non-resident, 12 Cal.App.2d at pages 636–637, 55 P.2d at page 935. The contract under consideration recites that ‘Chalmers is not an architect,’ and the court found that prior to making the agreement defendant fully informed plaintiff in writing that he was not an architect licensed in this State.

This reduces appellant's contention to one based upon the contract provision which specifies that Chalmers ‘[p]repare for Owner plans, drawings and specifications for said building including preliminary plans, final and working drawings and specifications complying with the requirements and regulations of the California State Department of Public Health, the California State Fire Marshal, the United States Department of Public Health.’ Counsel points out that § 406(b) of the regulations of the California State Department of Public Health, Title 17, Cal.Adm.Code, provides with respect to hospitals: ‘Plans and specifications shall be prepared by a duly licensed architect or a registered civil engineer.’ This regulation rests upon § 1411, Health and Safety Code.2 Section 1417 thereof provides that a violation ‘of the rules and regulations promulgated under this chapter’ is a misdemeanor. The applicable regulations of the United States Department of Public Health provide as follows: ‘* * * strict compliance with all applicable state and local codes and regulations is required.’ 42 C.F.R. 53, Appx. ‘A,’ p. 176.

Counsel for appellant argues that such an administrative regulation has the force of law, see Mitchell v. McKevitt, 128 Cal.App. 458, 461, 17 P.2d 789; Viner v. Civil Service Comm., 59 Cal.App.2d 458, 465, 139 P.2d 88, and that, as the contract expressly provides for an illegal act, it is unlawful and void and the law will grant no relief by way of enforcing the same. Respondent argues that § 1411, Health and Safety Code, has no relation to construction of the building, does not attempt to cover the field occupied by the architects licensing Act, and that the regulation requiring plans to be drawn only by a licensed architect is void because it exceeds the bounds of § 1411 and conflicts with the provisions of § 5537, Business and Professions Code. The solution of the problem thus raised is not free from difficulty or doubt and we find it unnecessary to pass upon it. It will be assumed for purpose of further discussion that appellant is correct in his claim that the regulation is a valid one. It does not follow, however, that the contract is thereby rendered unenforceable.

If that agreement calls for a violation of said regulation through preparation of plans, etc., without procuring an architect's license, it is of course illegal (upon the assumption that § 406(b) is a valid regulation). But if it contemplates that defendant shall procure a license before performing, if that is the fair interpretation of the contract, it will be so construed in order to sustain its validity. Vagim v. Brown, 63 Cal.App.2d 504, 510, 146 P.2d 923, 926: ‘If an agreement does not provide for a method whereby its purpose is to be accomplished, it must be assumed, if it can be accomplished by any legal method, that such method was contemplated when the contract was made, and will be pursued. Burne v. Lee, 156 Cal. 221, 104 P. 438.

‘It is the universal rule that where a contract can be performed legally it will not be presumed that the parties intended to perform it in an illegal manner (Fites v. Marsh, 171, Cal. 487, 153 P. 926), and where a contract can be performed in a legal manner, as well as in an illegal manner, it will not be declared void because it was in fact performed in an illegal manner. Teachout v. Bogy, 175 Cal. 481, 166 P. 319. This last principle stated is applied where the contract manifests no intent or purpose that it is to be performed in an illegal manner and where also the party complaining does not participate in, or cooperate with the illegal performance.’ To the same effect see Fadel v. Slayman, 84 Cal.App.2d 6, 9, 189 P.2d 771; Barham v. Barham, 33 Cal.2d 416, 429, 202 P.2d 289; Freeman v. Jergins, 125 Cal.App.2d 536, 546, 271 P.2d 210; Fites v. Marsh, 171 Cal. 487, 488, 153 P. 926; Dougherty v. Cross, 65 Cal.App.2d 687, 698, 151 P.2d 654; Gardiner v. Burket, 3 Cal.App.2d 666, 669–670, 40 P.2d 279; Thacker v. American Foundry, 78 Cal.App.2d 76, 83, 177 P.2d 322; 12 Cal.Jur.2d § 69 p. 272; § 127, p. 340; 17 C.J.S., Contracts, § 190, p. 545; 12 Am.Jur. § 153, p. 647; § 251, p. 793.

The court found that defendant, before accepting employment, not only informed plaintiff that he was not an architect licensed in California, but also said he then was licensed as such in Nebraska where he had practiced for several years, that he had prepared plans for a hospital while in the air force and that he intended to apply to the State of California for an architect's license; it was also found that defendant at all times was in fact licensed to practice in Nebraska. In these circumstances the obtaining of a California certificate became an implied obligation of his contract. Actually he never tried to do so until August, 1955, some 18 months after the contract was made.

The procuring of a California license should have been no real task for one possessing defendant's qualifications (he must be taken at his word in that respect). Section 5540, Business & Professions Code, provides for issuance of a temporary certificate to an out-of-state architect. It says: ‘This chapter does not prevent a person, who is engaged in the practice of architecture outside this State, from preparing plans and specifications for a stipulated building or other structure within this State if he pays the fee provided by this chapter, presents satisfactory evidence to the board that he is competent to practice architecture and the board issues a temporary certificate to him for the stipulated structure.’ Moreover, the statute provides for certification of any applicant who can pass the prescribed examination and otherwise qualify. §§ 5550–5551. The attorney general has ruled that such certificates cannot be denied to applicants solely upon the ground of nonresidence. (4 A.G. 400.)

It being an implied term of his contract that defendant would perform lawfully, it became his duty to take and pass any examination necessary to comply with the Board of Health regulations under discussion. Having engaged to do so, an impossibility arising from personal inability to pass the examination or to otherwise qualify would not excuse performance on defendant's part. Civ.Code, § 1597; 12 Cal.Jur.2d § 238, p. 461; 12 Am.Jur. § 378, p. 954; Hein v. Fox, Mont., 254 P.2d 1076, 1079; Standard Oil Co. of New York v. Central Dredging Co., 225 App.Div. 407, 233 N.Y.S. 279, 282–283, affirmed in 252 N.Y. 545, 170 N.E. 137.

Defendant made no effort before this lawsuit was filed to procure a certificate, either the temporary one issuable to a nonresident licensed architect or the permanent one which follows the formal examination of §§ 5550–5551. He repudiated the contract in October, 1954, at which time he advised plaintiff that he would no further perform ‘unless plaintiff would agree to release defendant from said agreement and enter into a new agreement with defendant and another architect, the terms of said proposed new agreement being less favorable to plaintiff than said agreement executed by plaintiff and defendant and providing for additional payments to be made by plaintiff in an amount of at least $4,575.00.’ (Finding VI.) Defendant thus defaulted without any legal excuse therefor.

No question is raised as to the propriety of the amount of damages awarded.

The judgment and the order under appeal are affirmed.


1.  The word architect is defined as referring ‘to a person who holds a certificate to practice architecture in this State under authority of this chapter.’ Bus. & Prof.Code, § 5500.

2.  § 1411. ‘The State department, after consultation with the advisory board and receipt of the recommendations of the advisory board in respect thereto, shall make and promulgate, and may thereafter modify, amend, or rescind, reasonable rules and regulations to carry out the purposes of this chapter, classifying hospitals and prescribing minimum standards of safety and sanitation in the physical plant, of diagnostic, therapeutic and laboratory facilities and equipment for each class of hospitals.’

ASHBURN, Justice.

MOORE, P. J., and FOX, J., concur.